Randall Thomas McArty v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 8, 2001

RANDALL THOMAS McARTY

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 00-969

PRO SE MOTIONS FOR EXTENSION OF TIME TO FILE BRIEF, TO PROCEED AS AN INIDGENT, AND FOR REVIEW OF ALL ERROR [CIRCUIT COURT OF CLARK COUNTY, NO. CR 92-111, HON. JOHN THOMAS, JUDGE]

MOTIONS DENIED AND APPEAL DISMISSED

In 1993, Randall Thomas McArty was found guilty of murder in the first degree and sentenced to life imprisonment. We affirmed. McArty v. State, 316 Ark. 35, 871 S.W.2d 346 (1994).

McArty subsequently filed a petition for postconviction relief pursuant to Criminal Procedure Rule 37 in the trial court that was denied. He appealed from that order, and it was affirmed. McArty v. State, CR 94-1010 (April 10, 1995).

In 1998, McArty filed in this court a petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. We found no ground on which the writ could be issued. McArty v. State, 335 Ark. 445, 983 S.W.2d 418 (1998).

In 2000, McArty filed a second petition for postconviction relief pursuant to Criminal Procedure Rule 37 in the trial court that was also denied. The record on appeal from that orderhas been lodged here. Appellant McArty has filed three motions. The motions are denied and the appeal dismissed because the Rule 37 petition in the trial court was an authorized second petition.

This court has consistently held that an appeal of the denial of postconviction relief will be not be permitted to go forward where it is clear that the appellant could not prevail. Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996); Harris v. State, supra; Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994); see Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

Rule 37.2(b) provides that all grounds for relief must be raised in the original petition. A petitioner is not entitled to file a second petition under the rule, unless the original petition was specifically denied without prejudice to filing a subsequent petition. Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981). When appellant's original petition was denied, it was denied with prejudice; therefore, appellant was procedurally barred from proceeding again under the rule.

Motions denied and appeal dismissed.

Arnold, C. J., not participating